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Will the Senate prevent Obama from nominating another justice like Sonya Sotomayor?

Obama will have to deal with a Republican Senate for the first time in his presidency and some, like think tank “Third Way,” argue Obama should respond by compromising on his progressive agenda. But is that really necessary?

In important matters such as Supreme Court appointments, Obama might be more effective by standing up for his convictions.

Bill Clinton watches as Ruth Bader Ginsberg is sworn in as Supreme Court Justice in 1993.

This question is all the more important as 81 year-old Justice Ruth Bader Ginsberg underwent heart surgery after experiencing discomfort on Tuesday. Otherwise, she is in fine shape: She works out regularly, and even put in an “all-nighter” to write her dissenting opinion last month on the Texas Voter ID law, as she told Ella Magazine in September, before her heart problem started:

Jessica Weisberg: I’m not sure how to ask this, but a lot of people who admire and respect you wonder if you’ll resign while President Obama is in office.

Justice Ruth Bader Ginsberg: Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam… I think I’ll recognize when the time comes that I can’t any longer. But now I can.

Control of the Senate makes little difference on legislation as long as Obama is willing to to dust off his veto pen. Over the last six years Obama has only vetoed two bills, fewer than any President since James Garfield who served for only half a year. However, that should change as his veto authority will be needed to keep Republican legislation in check.

However, Obama’s veto pen is of little use to stymie the Senate’s abuse of its power to confirm or deny Presidential appointments. Even with a Democratic majority, the Republican threat of a filibuster has created a record backlog.

According to AP, “Some 150 of President Barack Obama’s nominees are still waiting their turn. They include 25 more potential ambassadors and other senior State Department appointments.” For example, we do not have a Surgeon General to spearhead our response to the Ebola crisis. Fully a quarter of the world, does not have an American ambassador. We don’t have one in Russia to clarify our position in the war with Ukraine and we do not have one in Guatemala to stave off the droves of unaccompanied minors seeking refuge in our country. The situation was even worse until Harry Reid recently limited the ability to filibuster certain judicial appointments.

Defining a Legacy

Of all these nominations the most significative are the judicial appointments, since they are lifetime appointments. A justice appointed to the Supreme Court may end up serving decades after the President who made the appointment is long gone. In this way, judicial appointments especially to the Supreme Court define a president’s legacy far beyond his own term of office.

This is not a moot point. Given the ages of the current Justices on the Supreme Court, there is a 49.1% chance that at least one of the nine will not live to see the inauguration of the 45th President of the United States. Together with the possibility that a Justice retires for health or personal reasons short of shuffling off this mortal coil, it is more likely that not that Obama will yet face one or more vacancies on the Supreme Court.

The 2014 Senate elections have made it more difficult for Obama to appoint a Supreme Court Justice. If any future nominee looks like those the Pr4esident has already appointed, he’d likely have a fight on his hands. His best chance would be to go with a nominee who is a true moderate, or an impeccably qualified, mainstream Democrat.

That might work if Republicans were opposing Obama’s nominees on their merits. However, Republican opposition has often taken shape to gain leverage as a protest against extraneous issues like the Affordable Care Act or immigration. Sometimes Obama’s support for a previously conservative idea is the kiss of death as Republicans flip positions in order to not be perceived as supporting anything that Obama favors.

Making the Case Directly to the People

Instead of searching in vain for a hypothetical consensus candidate, Obama should choose the candidate who best exemplifies his vision for the Supreme Court and make his case directly to the public.

Adam Green suggests that Obama stop catering to “what the center of Washington D.C. is instead of what the center of the country is…. If Mitch McConnell wants to stand up and say ‘no’ to millions of hispanics; if Mitch McConnell wants to say ‘no’ to millions of women, then let him.”

Perhaps the Republicans will refuse to approve a progressive justice, and either deny the candidate a hearing or vote the candidate down. However, if they do, Democrats can make that the issue they bring to the American people in the 2016 election. If voters are unhappy with actions of the Senate, many Republican Senators will lose the seats they won in the Republican wave of 2010.

If the Democrats win the White House and regain control of the Senate, the next President would be able to appoint a true progressive. If necessary, it would be better to wait a little while for a nominee with vision than to settle for a flawed compromise justice of the Supreme Court.